United States District Court, D. Oregon
R. Shepherd, Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, Leisa A. Wolf, Special
Assistant United States Attorney, Office of General Counsel,
Social Security Administration Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
N. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiff's application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) pursuant to the Social Security Act. For
the following reasons, the Commissioner's decision is
reversed and remanded.
district court must affirm the Commissioner's decision if
it is based on the proper legal standards and the findings
are supported by substantial evidence. 42 U.S.C. §
405(g); see also Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a
preponderance.” Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). It means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Andrews, 53
F.3d at 1039).
the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be
upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading of the record, and this Court may not
substitute its judgment for that of the Commissioner. See
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1193, 1196 (9th Cir. 2004). “[A] reviewing court must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation
marks omitted)). A reviewing court, however, may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at
filed an application for Disability Insurance Benefits and
Supplemental Security Income with a protective filing date of
November 6, 2001. Plaintiff alleges disability beginning July
27, 1999. Plaintiff was born on January 30, 1974 and was 25
years old on the alleged disability onset date. She is now 45
years old. Plaintiff alleges disability due to post-traumatic
headaches, degenerative disc disease of the cervical spine,
fibromyalgia, obesity, cognitive disorder, and depression.
applications were denied initially and on reconsideration.
Plaintiff requested a hearing before an Administrative Law
Judge (“ALD”). ALJ Charles Evans held a hearing
on July 31, 2003. After the hearing, ALJ Evans issued a
decision finding Plaintiff not disabled. Plaintiff sought
review of that decision, the Appeals Council granted review,
and the case was remanded to the ALJ for further proceedings.
ALJ Evans held another hearing on May 18, 2005. On January
20, 2006, ALJ Evans again found Plaintiff not disabled.
Plaintiff sought review of that decision. The Appeals Council
granted Plaintiff's request for review and remanded the
case to ALJ Dan Hyatt for further proceedings.
Hyatt held a hearing on July 31, 2007. On December 8, 2007,
ALJ Hyatt found Plaintiff not disabled. Plaintiff sought
review of that decision, but this time the Appeals Council
denied Plaintiff's request and so she filed an action in
this court. On May 25, 2010, this court issued an order
remanding the case to the agency for another hearing. ALJ
Hyatt held a hearing on December 14, 2010. In a decision
issued on January 14, 2011, ALJ Hyatt found Plaintiff not
disabled. After the Appeals Council denied review, Plaintiff
filed another action in this court, and on January 23, 2014,
this court issued an order remanding the case to the agency
for another hearing, ordering that on remand Plaintiff be
examined by a board-certified rheumatologist. 6:12-
cv-02067-BR, ECF 25. After a fifth hearing, this time before
ALJ Kelly Wilson, at which a medical expert rheumatologist
testified but did not examine Plaintiff, ALJ Wilson issued a
decision on September 27, 2016 finding Plaintiff not
disabled. See AR 1142-1187. The Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the commissioner. Plaintiff
now seeks judicial review of that decision.
The Sequential Analysis
claimant is disabled if he or she is unable to “engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” 42 U.S.C. §
423(d)(1)(A). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011); see
also 20 C.F.R. §§ 404.1520 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful
activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
2. Is the claimant's impairment “severe”
under the Commissioner's regulations? 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is
“severe” if it significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1521(a), 416.921(a).
Unless expected to result in death, this impairment must have
lasted or be expected to last for a continuous period of at
least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or
equal” one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate
medical and other relevant evidence to assess and determine
the claimant's “residual functional capacity”
(“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his
or her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
4. Can the claimant perform his or her “past relevant
work” with this RFC assessment? If so, then the
claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot
perform his or her past relevant work, the analysis proceeds
to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),